Opinion
Case No. 2D19-176
10-21-2020
Robert D. GARNER, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM. We reverse the order denying Robert D. Garner's motion for postconviction relief. We remand for resentencing pursuant to Croft v. State, 295 So. 3d 307 (Fla. 2d DCA 2020).
Mr. Garner filed his motion pursuant to Florida Rule of Criminal Procedure 3.850. He argued that his sentence was unconstitutional under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). Relying on these cases, the postconviction court granted his motion in 2016 and ordered a resentencing hearing. The State did not appeal the order.
Two years later, while Mr. Garner was awaiting resentencing, the State moved for reconsideration of the postconviction court's order, relying on State v. Michel, 257 So. 3d 3 (Fla. 2018). In late 2018, the court granted the motion, withdrew its order granting resentencing, and denied Mr. Garner's motion for postconviction relief.
The postconviction court, however, lacked jurisdiction to withdraw its 2016 order. See Croft, 295 So. 3d at 309 ; see also Wittemen v. State, 310 So.3d 1037, 1039 (Fla. 2d DCA Aug. 21, 2020) ("The postconviction court therefore lacked jurisdiction to rescind its original order on the basis of an untimely rehearing motion by the State." (citing Fla. R. Crim. P. 3.850(j) )). Accordingly, we reverse the postconviction court's 2018 order, reinstate the 2016 order, and remand for the postconviction court to conduct a resentencing hearing. We note, as we did in Croft, that "the decisional law effective at the time of the resentencing applies." 295 So. 3d at 309 (quoting State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011) ). Thus, it is possible that Mr. Garner may still receive the same sentence upon resentencing.
Reversed and remanded with instructions.
LaROSE, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.